India's New Surrogacy Law Bans Commercial Arrangements and Tightens Rules

India’s Parliament passed the Surrogacy (Regulation) Act, 2021 on 25 January 2022. The law tightens rules around surrogacy, limiting it to certain couples and banning commercial arrangements. It also introduces strict eligibility criteria for both intended parents and surrogates. The new Act defines surrogacy as an arrangement where a woman carries and delivers a child for another couple, with the intention of handing over the child after birth. It permits only altruistic surrogacy—where no payment is involved beyond medical expenses—and completely bans commercial surrogacy. Violations can result in up to ten years in prison and fines of up to ten lakh rupees.

To qualify, couples must be Indian citizens married for at least five years. They must also prove infertility and obtain a certificate of essentiality. Surrogates, meanwhile, must be close relatives of the intending couple, already married, and have at least one biological child of their own. The law excludes foreigners from surrogacy, creating uncertainty for children born to Indian parents abroad or to mixed-nationality couples. It also leaves key questions unanswered, such as whether the surrogate’s husband is legally presumed to be a parent. Additionally, the Act does not clarify whether intended parents must be named on birth certificates, raising concerns about potential disputes over parental rights.

The Act imposes strict conditions on who can access surrogacy and under what circumstances. While it aims to prevent exploitation, gaps remain in areas like citizenship and parental recognition. These ambiguities could lead to legal challenges for families navigating the new system.